I was once again invited to do my civic duty by going through the Brazil-esque process of juror selection at a courthouse in downtown D.C. today, and I found myself thinking of a quandary my friend Baylen Linnekin faced last year. A commited anti–Drug War activist, he’d had an opportunity to serve on a drug case, but been promptly removed from the pool upon revealing his views on the subject. He’d solicited comments, and at the time, I opined that it would’ve been perfectly morally justifiable to fudge that point (or, if we want to be sticklers about it, to perjure yourself) in the interest of preventing someone from being convicted of violating an unjust law. I even recalled musing it was a shame I hadn’t had a chance to do something like that last time I was called, when (thanks to a last-minute settlement) I didn’t even make it to voir dire.
Well, I had my chance today. And as you may have surmised, since I’m not quite dim enough to confess perjury on a public blog, I passed.
After a mind numbing process of being shunted around and lined up in a specific order which, for reasons opaque to me, was apparently very important, we were introduced to the defendant, Solomon. He was a lanky black man in a brown windbreaker who looked about 65. His attorney speaks briefly, and I immediately wonder how hard it was for the District to find someone who managed to get through law school despite being this inept. The majestic equality of the right to counsel—Anatole France would be proud. We were told he was charged with “possession with intent to distribute” of oxycodone and vicodin. (I think he may have worked at some kind of medical facility… I was hoping they might be charging them with stealing the drugs from his employer or something like that; I could vote the merits on that. Nope.) We went through the usual litany of questions, with each of the hundred or so prospective jurors writing down the numbers of any they answered “yes” to. “Number Six: Are you or any close friends or relatives lawyers, or have you or any of those people studied law?” Oh, goodness yes… “some of my best friends,” as they say. “Number Nine: Do you have strong feelings about drugs or drug dealing that might prevent you from objectively applying the law to the facts of the case? [She pauses, and then, as an afterthought] … or about the drug laws, I should add.”
I know there is no chance in hell I will vote to convict. They could have videotape of him prancing around Times Square flinging pills to the crowd from a huge sack like some deranged Santa and I’d say “not guilty.” What if that were the difference between this guy doing time for a victimless crime and getting off? Would they bother retrying if I was the lone holdout? Would it even come to that? Perhaps I could persuade the other jurors that reasonable doubt existed, whether or not the guy seemed guilty.
But I marked down a nine. And then, just before my turn came to approach the white-noise cone of silence around the bench, we broke for lunch. And I stewed for an hour and a half. What was my problem? Sure, I’d just as soon not do jury duty, but that was no reason to throw this poor bastard to the wolves. Did I really feel an obligation to tell the truth to a court that was theatening this apparently peaceful old man with some draconian punishment?
Apparently I did. “You wrote down number nine,” the judge asks after lunch, ” Can you explain that?” I say my moral views would make it impossible for me to render a guilty verdict for a non-violent drug offence. “What if I told you,” she says, leaning forward, “that it was your duty to decide according to the law as I explained it to you?” I eye counsel, who are standing to either side of me jotting notes, wonder if the defense lawyer is hoping I’ll just go along, consider trying to debate the merits of jury nullification, consider reversing course and solemnly promising to do my very, very best… but ultimately just say: “I wouldn’t be able to agree. I think my duty would be to acquit.” She shrugs and tells me I’m excused.
I’m not remotely sure that was the right thing to do. I suppose I surprised myself: I’ve got enough residual respect for the American legal system, even when it acts in the service of perverse laws, that I felt uncomfortable breaking a juror’s oath, for all the best reasons. Of course, I understand all the reasons why a liberal society might want to make use of citizen jurors, and why, if we’re going to have such a system, those jurors have to be able to bracket (to some extent) their disagreements with the law, have to agree not to use the position to enact their policy preferences. But I doubt all that’s much consolation to Solomon. I wonder if I’d known the punishment he faced, and it were severe, that would have pushed me to try to get on the jury. The question that really makes me queasy, though, is: What if this had been some college student, someone I could look at and identify with, who’d have made me think “that could be one of half a dozen old friends of mine with a little bad luck”? What if, to put it a little more bluntly, he’d been 22 and white instead of 65 and black? I don’t know whether I made the right choice or not; I do know I want to believe I’d have made the same call whoever the defendant was. But part of me wonders, and it’s an ugly thought.
Addendum: Matt “Mittens” Yglesias and Radley Balko both favor the stealth approach, and the more I think about it, the more confident I feel that’s the route I should have gone. (I should note that given the norms about refusing to dig too much into jurors’ motives, I had no serious worries about actually being charged with perjury later; it was more a question of which of competing obligations was stronger.) Mittens echoes one of the points that was running through my head at voir, and which in retrospect should’ve been decisive: It’s clear that the architects of our legal system meant for jurors to act on their convictions about the justice of the laws they’re applying; a system of citizen jurors, with no special fact-finding expertise, makes no sense otherwise. Asking questions designed to exclude people who are prepared to do that undermines the purpose of having jurors, so complying with that system of exclusion can’t be part of one’s obligations qua juror. Well, perhaps I’ll see what I can find out about the disposition of the case. He may be a sufficiently sympathetic defendant that he’ll get off without my help.